Sunday, November 14, 2010

Iowa Supreme Court Vote: The Silent Majority Speaks

Last year the Iowa Supreme Court penned a unanimous decision interpreting the state constitution as permitting same-sex marriage.  I read the opinion and found no historical or legal basis for the curious holding that embraced such legal scholarship as referring to Iowa's state motto ("Our Liberties We Prize and Our Rights We Will Maintain").

The ensuing firestorm was predictable.  Gay marriage supporters praised Iowa's "enlightened" approach while opponents feared the Hawkeye State would become the next Sodom and Gomorrah.  Also predictable was that the next judicial election would set the stage for what amounted to a  surrogate gay marriage referendum.

Iowa does not elect judges.  They're appointed.  But there are periodic "retention" elections where voters get to say "yes" or "no" on whether a judge is retained in office.

Bob Vander Plaats, a Republican who lost a bid to be Iowa's governor, spearheaded the effort to oust three of Iowa's seven Supreme Court justices.  His campaign prediactably got a chunk of right-wing campaign change.

On the flip side, a counter-campaign endorsed by former Gov. Bob Ray, a moderate Republican and friend of mine, expressed concerns that failure to retain these justices would set the stage for more politicized judicial elections and interfere with judicial independence.

The truth is that both sides had meritorious arguments.  The controversial decision was flawed.  Despite the contortionist efforts to weave the Iowa constitution to support same-sex marriage, one is hard-pressed to envision how the framers of that constitution would have envisioned it embracing gay marriage in 1846.

On the flip side, concerns over judicial independence are not entirely without merit.  Judicial elections here in Wisconsin have become increasingly politicized.  Concerns over special interest groups being able to hijack an election are generally justified.

At the end of the day, however, Iowa voters bounced the three justices out of office.  Iowa voters did this,  not out-of-state special interest groups.  Lest anyone think this is anything other than Iowa common sense pulling in the reins on judicial activism, this is the same state that boosted a guy named Barack Obama on his way to becoming president in 2008.

While I'm conceptually sympathetic to the concerns about special interests frustrating judicial independence, the retention election exists for a reason.  All Iowans did was exercise their right to vote on the performance of their judiciary. 

For their part, the ousted justices essentially didn't campaign.  That's too bad.  If there was a sound basis for the same-sex marriage decision, then they should have been proud to defend it against a political challenge.  Did they seriously think there would be no fallout?  Perhaps voters saw more than just a controversy over same-sex marriage -- judicial arrogance on top of judicial activism.

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